Peo v. Marx

The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.

SUMMARY
September 5, 2019

2019COA138

No. 16CA1057, Peo v. Marx — Crimes — Sexual Assault;
Evidence — Opinions and Expert Testimony — Testimony by
Experts

A division of the court of appeals decides that an expert

witness in a sexual assault case may not testify on the percentage

of children and teenagers who fabricate allegations of sexual abuse,

the percentage of girls who are sexually abused by family members,

and the percentage of women who have been sexually assaulted.

The division further decides that, to obtain an evidentiary hearing

under Colorado’s rape shield statute, § 18-3-407, C.R.S. 2018, a

defendant need not prove that the accuser’s prior allegations of

sexual assault were “false in fact,” but, rather, that the defendant

could establish at the hearing the falsity of the prior allegations by a

preponderance of the evidence.
COLORADO COURT OF APPEALS 2019COA138

Court of Appeals No. 16CA1057
La Plata County District Court No. 14CR457
Honorable William L. Herringer, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Edmund Peter Marx,

Defendant-Appellant.

JUDGMENT REVERSED

Division IV
Opinion by JUDGE LIPINSKY
Román, J., concurs
J. Jones, J., specially concurs

Announced September 5, 2019

Philip J. Weiser, Attorney General, Elizabeth Ford Milani, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Stephen Arvin, Deputy State
Public Defender, Denver, Colorado, for Defendant-Appellant
I. Introduction

¶1 Sexual assault cases are particularly difficult given the need to

balance the rights of the victim against those of the accused. See

State v. Boisvert, 400 A.2d 48, 51 (N.H. 1979). The law must weigh

the consequences of invading the accuser’s privacy and the related

risk that sexual assaults may go unreported if victims fear

embarrassment or intimidation. At the same time, the defendant’s

rights to a fair trial and to challenge the credibility and veracity of

the accuser must be protected.

¶2 The Colorado General Assembly, like other legislatures

throughout the United States, enacted a rape shield statute

§ 18-3-407, C.R.S. 2018 (the Rape Shield Statute) to strike this

balance.

¶3 This case presents that dilemma. We must decide whether the

trial court properly balanced a defendant’s efforts to challenge the

truthfulness of the accuser against the prosecutor’s evidence

bolstering the accuser’s credibility. We conclude that it did not.

¶4 Defendant, Edmund Peter Marx, appeals his convictions of

sexual assault on a child (position of trust as part of pattern of

abuse), sexual assault on a child (position of trust), and aggravated

1
incest. The accuser alleged that Marx had sexually assaulted her

on multiple occasions when she was a teenager.

¶5 Marx’s defense focused on the accuser’s alleged lack of

credibility. The prosecutor responded by calling an expert witness

to provide opinions on the likelihood that a child or teenager will

falsely report a sexual assault and the prevalence of sexual assault.

¶6 Marx contends that the trial court erred by:

• allowing the prosecutor to introduce expert testimony on

the percentage of children and teenagers who fabricate

allegations of sexual abuse, the percentage of girls who

are sexually abused by family members, and the

percentage of women who have been sexually assaulted;

• excluding a neighbor’s testimony challenging the

accuser’s truthfulness; and

• rejecting the defense’s request for an evidentiary hearing

under the Rape Shield Statute, to determine whether

Marx could introduce at trial evidence of the accuser’s

purported history of falsely accusing schoolmates of

sexual assault.

2
¶7 We hold that Marx is entitled to a new trial because the trial

court erred by permitting the prosecutor’s expert to provide the

statistical opinions; that the trial court correctly excluded the

neighbor’s testimony; and that the trial court erred by not

conducting a hearing on the admissibility of Marx’s evidence

allegedly showing that the accuser had falsely reported sexual

assaults.

II. The Trial Court Erred in Admitting the Expert’s Statistical
Testimony

A. The Expert’s Opinions on Sexual Assault Statistics

¶8 The prosecutor called Sheri Vanino as an expert on “sexual

assault victim behavior.” The trial court accepted her as an expert.

Vanino told the jury that “between 2 and 8 percent of sexual

assaults that are reported to the police turn out to be false. For a

child . . . the studies are more around 2 to 6 percent, child or teen

. . . .” She further testified that sexual assault is “not at all rare.

One in four women are [sic] sexually assaulted in a lifetime, most of

whom are sexually assaulted under the age of 18.” She noted that

“somewhere around 50 percent of children . . . are abused by a

family member.”

3
B. Standard of Review

¶9 We review a trial court’s ruling on the admissibility of expert

testimony for an abuse of discretion. Kutzly v. People, 2019 CO 55,

¶ 8, 442 P.3d 838, 841. A court abuses its discretion when its

decision is manifestly arbitrary, unreasonable, or unfair, or when it

misconstrues the law. People v. Salas, 2017 COA 63, ¶ 30, 405

P.3d 446, 453.

¶ 10 The parties dispute whether Marx preserved his objections to

Vanino’s opinion testimony. We need not decide the preservation

issue, however, because we hold that the testimony was improper

even under the plain error standard of review.

¶ 11 Plain error is error that is obvious and substantial. Hagos v.

People, 2012 CO 63, ¶ 14, 288 P.3d 116, 120. An error is “obvious”

if the challenged action contravened a clear statutory command, a

well-settled legal principle, or Colorado case law. People v. Pollard,

2013 COA 31M, ¶ 40, 307 P.3d 1124, 1133. A “substantial” error is

one that so undermined the fundamental fairness of the trial itself

as to cast “serious doubt on the reliability of the judgment of

conviction.” Id. at ¶ 43, 307 P.3d at 1133 (quoting Hagos, ¶ 14,

288 P.3d at 120).

4
¶ 12 “Because this standard was formulated to permit an appellate

court to correct ‘particularly egregious errors,’ the error must impair

the reliability of the judgment of conviction to a greater degree than

under harmless error to warrant reversal.” Hagos, ¶ 14, 288 P.3d

at 120 (quoting Wilson v. People, 743 P.2d 415, 420 (Colo. 1987)).

C. Expert Testimony on Whether Children Tend to
Fabricate Sexual Abuse Allegations and the Likelihood of
Becoming a Victim of Sexual Assault

¶ 13 An expert witness may provide opinion testimony so long as

“the expert’s specialized knowledge will assist the jury in

understanding the evidence or in determining a fact in issue.”

People v. Mintz, 165 P.3d 829, 831 (Colo. App. 2007). An expert

may not opine on a witness’s credibility or that a witness was telling

the truth on a specific occasion. People v. Wittrein, 221 P.3d 1076,

1081 (Colo. 2009) (citing People v. Eppens, 979 P.2d 14, 17 (Colo.

1999)); see United States v. Sanchez-Lima, 161 F.3d 545, 548 (9th

Cir. 1998) (“Testimony regarding a witness’ credibility is prohibited

unless it is admissible as character evidence.”).

¶ 14 Thus, “experts may not offer their direct opinion on a child

victim’s truthfulness or their opinion on whether children tend to

fabricate sexual abuse allegations.” Wittrein, 221 P.3d at 1081.

5
Expert testimony that children tend not to fabricate stories of

sexual abuse is “tantamount to [an expert] testifying that [a] child

victim was telling the truth about her allegations.” Id. at 1082

(citing People v. Snook, 745 P.2d 647, 648 (Colo. 1987)).

¶ 15 Although expert testimony is not permitted to bolster a

victim’s credibility, an expert may testify concerning whether a

sexual assault victim’s behavior or demeanor was consistent with

the typical behavior of victims of abuse. People v. Glasser, 293 P.3d

68, 78 (Colo. App. 2011). This type of testimony is admissible

because it assists the jury in understanding the victim’s behavior

after the incident and explains why the victim acted the way he or

she did. People v. Relaford, 2016 COA 99, ¶ 28, 409 P.3d 490, 496.

“Background data providing a relevant insight into the puzzling

aspects of the child’s conduct and demeanor which the jury could

not otherwise bring to its evaluation . . . is helpful and appropriate

in cases of sexual abuse of children . . . .” Id. (quoting People v.

Whitman, 205 P.3d 371, 383 (Colo. App. 2007)). Although this type

of testimony “necessarily carrie[s] with it the implication that the

child’s report of sexual abuse was true,” it is proper expert

testimony because it “aid[s] the jury in understanding the typicality

6
of reactions by young [victims] who have been subjected to sexual

abuse that might, under other circumstances, be considered

bizarre.” Id. at ¶ 30, 409 P.3d at 496 (quoting People v. Morrison,

985 P.2d 1, 6 (Colo. App. 1999)).

¶ 16 The admissibility of opinion testimony that assists the jury in

understanding a victim’s behavior, however, does not mean “that

testimony of general characteristics of any type is admissible to

attack or support a witness’s credibility.” Id. at ¶ 31, 409 P.3d at

496 (quoting People v. Cernazanu, 2015 COA 122, ¶ 20, 410 P.3d

603, 606-07). Rather, opinion testimony of general characteristics

is admissible only if it “(1) relates to an issue apart from credibility

and (2) only incidentally tends to corroborate a witness’s

testimony.” Id.

D. The Expert’s Testimony on Whether Children and Teenagers
Tend to Fabricate Sexual Abuse Allegations Was an
Impermissible Expert Opinion

¶ 17 Vanino’s testimony regarding the small percentage of children

and teenagers who make false allegations of sexual assault

improperly bolstered the accuser’s credibility. Vanino’s opinion that

only two to six percent “of sexual assaults that are reported to the

police [by children and teenagers] turn out to be false” did not relate

7
to any issue other than the accuser’s truthfulness. The practical

result of Vanino’s testimony was to suggest to the jury that the

accuser was “almost certainly telling the truth.” See Snook, 745

P.2d at 649.

¶ 18 Vanino could have explained the typical demeanor and

behavioral traits of a sexually abused child or teenager, which

would have allowed the jury to gain a better understanding of the

accuser’s actions after Marx allegedly sexually assaulted her. See

Relaford, ¶ 32, 409 P.3d at 496; cf. Morrison, 985 P.2d at 6

(“[S]ubstantially all of th[e] expert’s testimony was properly received

. . . to aid the jury in understanding the typicality of reactions by

[children] who have been subjected to sexual abuse.”). This type of

testimony would not have told the jurors what result to reach and

thus would have been permissible. See Relaford, ¶ 33, 409 P.3d at

496.

¶ 19 But Vanino’s testimony about the percentage of children and

teenagers who fabricate sexual assault allegations did not serve any

purpose other than to attempt to influence the jurors’ determination

of the accuser’s credibility. See id. at ¶ 34, 409 P.3d at 496; see

also Snook, 745 P.2d at 649 (“[T]he jury’s only conceivable use of

8
[the] testimony would be as support for the [victims’] truthful

character[s].”). The testimony did not aid the jury in deciding the

case because it did not provide information whether, in this case,

the allegations of sexual assault were truthful. See Relaford, ¶ 31,

409 P.3d at 496.

E. The Expert’s Testimony on the Likelihood of Becoming a
Victim of Sexual Assault Was Also Impermissible

¶ 20 Similarly, the trial court should not have allowed Vanino to

testify regarding the percentages of women and children who are

victims of sexual assault. Vanino’s testimony that “[o]ne in four

women are [sic] sexually assaulted in a lifetime, most of whom are

sexually assaulted under the age of 18,” and that “around 50

percent of children . . . are abused by a family member,” was

irrelevant because it did not have “any tendency to make the

existence of any fact that is of consequence to the determination of

the action more probable or less probable than it would be without

the evidence.” CRE 401.

¶ 21 The testimony was also inadmissible to the extent it suggested

to the jury that the accuser’s claims were truthful because of the

percentage of females under the age of eighteen who are sexually

9
assaulted. See Snook, 745 P.2d at 649. Telling the jury that one in

four females is sexually assaulted and that fifty percent of children

are abused by family members could have served no purpose other

than to attempt to influence the jurors’ credibility determination.

See Relaford, ¶ 34, 409 P.3d at 496.

F. Conclusion

¶ 22 The trial court erred in allowing Vanino to testify that children

and teenagers rarely fabricate allegations of sexual abuse and

regarding the incidence of sexual abuse. The error was “obvious” in

light of the well-settled case law that experts may not offer opinions

on a witness’s credibility. See Pollard, ¶ 41, 307 P.3d at 1133

(holding that an error was obvious “[i]n light of the well-settled legal

principle upon which [the] rule is based, the prior references in

Colorado case law to the rule, and the uniformity with which

numerous other courts have embraced the rule”). And the trial

court’s error in allowing Vanino to offer her statistical opinions was

“substantial” because it undermined Marx’s defense premised on

the accuser’s alleged lack of credibility. See id. at ¶ 42, 307 P.3d at

1133 (concluding that error was “substantial” because it created

serious doubt regarding the reliability of the judgment of

10
conviction). The accuser’s credibility was particularly critical

because the prosecution introduced no physical evidence of the

alleged sexual assaults, the accuser and Marx were the only

witnesses to the incidents, and Marx recanted his confession.

¶ 23 Thus, the trial court’s error in admitting Vanino’s statistical

opinions requires reversal of Marx’s judgment of conviction,

whether under plain error or another standard of review.

III. The Trial Court Correctly Excluded the Neighbor’s Testimony
Regarding the Accuser’s Alleged Character for Untruthfulness

A. The Neighbor’s Testimony

¶ 24 Marx sought to introduce testimony from a neighbor regarding

the accuser’s alleged character for untruthfulness. The neighbor

said he had known the accuser and her family for more than twenty

years, and that Marx had worked for the neighbor at his ranch.

(The neighbor’s testimony was video-recorded because he was

unavailable at trial.)

¶ 25 The neighbor’s testimony focused on the accuser’s behavior.

He said the accuser had “created incidents” while at the neighbor’s

ranch. Specifically, he said the accuser had antagonized the

11
neighbor’s dogs by bringing cats onto the property and had gotten

in her father’s way while he was working to gain his attention.

¶ 26 The neighbor said his opinion about the accuser’s alleged lack

of truthfulness was based, in part, on her denial that she had

mistreated the dogs. He did not provide any other examples of the

accuser’s false statements. Although the neighbor characterized

the accuser as “untruthful” and “untrustworthy,” he refused to call

her a “liar.”

¶ 27 The trial court ruled that the defense could not introduce the

neighbor’s testimony that the accuser was “sneaky and attention

seeking,” had abused animals, or was “untrustworthy.” The trial

court, however, initially allowed the neighbor’s opinion testimony

regarding the accuser’s character for untruthfulness.

¶ 28 The scope of the neighbor’s testimony shrank further during

trial. The prosecutor sought permission to remove his entire

cross-examination from the portions of the video shown to the jury.

The court granted the prosecutor’s request. The court reasoned

that the neighbor’s statements about the accuser’s alleged lack of

truthfulness were intertwined with his inadmissible testimony

regarding her mistreatment of the dogs. By authorizing the

12
redaction of the cross-examination, the trial court removed from the

portion of the video shown to the jury all of the neighbor’s

references to the accuser’s lack of truthfulness.

¶ 29 Because, at retrial, Marx may again seek to introduce the

neighbor’s testimony regarding the accuser’s alleged

untruthfulness, we consider whether the trial court erred in

excluding that testimony.

B. Standard of Review

¶ 30 We review the trial court’s decision to exclude evidence for an

abuse of discretion. Salas, ¶ 30, 405 P.3d at 453. However, we

review de novo a trial court’s interpretation of a statute or rule

governing the admissibility of evidence. Id.

C. Evidence of a Witness’s Character for Untruthfulness

¶ 31 A witness’s credibility may be attacked through character

evidence under CRE 608, which states, in relevant part:

Specific instances of the conduct of a witness,
for the purpose of attacking or supporting the
witness’ character for truthfulness . . . may not
be proved by extrinsic evidence. They may,
however, in the discretion of the court, if
probative of truthfulness or untruthfulness, be
inquired into on cross-examination of the
witness . . . concerning the character for
truthfulness or untruthfulness of another

13
witness as to which character the witness
being cross-examined has testified . . . .

CRE 608(b)(2). “The purpose of [the] rule is to allow specific

instances of conduct to be admitted to impeach a witness’s

character for truthfulness. Such evidence allows the jury to

evaluate the witness’s capacity for truthfulness as the rule

provides.” McGill v. DIA Airport Parking, LLC, 2016 COA 165, ¶ 21,

395 P.3d 1153, 1157. The evidence must address the witness’s

truthful character, and not focus on her veracity on a particular

occasion. People v. Koon, 724 P.2d 1367, 1370 (Colo. App. 1986).

Also, “the trial court should exclude evidence that has little bearing

on credibility, places undue emphasis on collateral matters, or has

the potential to confuse the jury.” People v. Knight, 167 P.3d 147,

153 (Colo. App. 2006).

D. The Neighbor’s Testimony Regarding the Accuser’s Alleged
Untruthfulness Was Inadmissible

¶ 32 The trial court correctly excluded the neighbor’s statements

about the accuser’s alleged untruthfulness for three reasons.

¶ 33 First, the testimony focused on issues having nothing to do

with credibility. It primarily rested on the accuser’s behavior

towards the neighbor’s dogs and her interference with her father’s

14
work at the neighbor’s ranch. The neighbor provided only one

example of the accuser’s alleged untruthfulness: when asked what

she was doing to the dogs, she responded, “Oh, nothing” and

“pretend[ed] as if nothing happened.” And because the neighbor

could point to only a single instance of the accuser’s alleged

untruthfulness, his testimony did not speak to her character

generally. See Koon, 724 P.2d at 1370.

¶ 34 Second, the neighbor’s testimony about the accuser was of

dubious relevance. He admittedly could only speculate “as to how

she is today,” as he had not seen the accuser since she was

fourteen — two years before Marx allegedly sexually assaulted her.

And the neighbor’s statements about the accuser’s untruthfulness

were equivocal. At least twice he denied the accuser was a “liar,”

although he called her “untruthful, deceitful, and manipulative.”

the neighbor did not explain why he believed she was not a liar, or

the distinction in his mind between lying and being untruthful.

¶ 35 Third, a child’s assertion that she was “doing nothing” when

confronted about misbehavior is not probative of a character for

untruthfulness. It is not the type of falsehood that is admissible

evidence of a character for untruthfulness under Rule 608. To hold

15
otherwise would invite a flood of testimony attacking witnesses who,

when children, had engaged in nothing more sinister than the

time-worn meaningless exchange: “What did you do? Nothing.”

See, e.g., Robert Paul Smith, Where Did You Go? Out. What Did You

Do? Nothing. (1957). Similarly, testimony that a witness looked

guilty by “pretend[ing] as if nothing happened” is “not a direct or

even indirect comment on defendant’s character for truthfulness or

untruthfulness, nor . . . a comment on his truthfulness on a

particular occasion.” People v. Acosta, 2014 COA 82, ¶ 72, 338

P.3d 472, 485.

E. Conclusion

¶ 36 For these reasons, we conclude that the neighbor’s testimony

does not satisfy the test for admitting evidence of a witness’s

character for untruthfulness.

IV. The Trial Court Erred in Not Conducting a Hearing on the
Admissibility of the Evidence of the Accuser’s Alleged History
of False Accusations of Sexual Assault

A. Marx’s Offer of Proof of Evidence Regarding the Accuser’s
Alleged Prior False Accusations of Sexual Assault

¶ 37 Marx filed a pretrial motion under subsection (2) of the Rape

Shield Statute for a hearing on the admissibility of evidence

16
allegedly showing that the accuser had a history of making false

accusations of sexual assault. In support of the motion, Marx made

an offer of proof through an affidavit of Grady King, an investigator

at the Durango Regional Office of the Colorado State Public

Defender (the Affidavit). The Affidavit described the accuser’s

alleged false reports of sexual assault against classmates.

¶ 38 The trial court concluded that the Affidavit “does not establish

by a preponderance of the evidence that [the accuser’s past]

allegations were false in fact and based upon that, I don’t think that

the Court is required to hold an evidentiary hearing.”

¶ 39 Although the court referred to the preponderance of the

evidence standard for establishing the admissibility of evidence

showing that a victim has a history of false accusations of sexual

assault, it did not apply that standard. Rather, the court required

Marx to surmount an “incredibly high hurdle” to prove entitlement

to a hearing on the admissibility of the evidence of the accuser’s

alleged false accusations:

[T]he question is did the defense demonstrate
to the Court through its offer of proof in the
affidavit by a preponderance of the evidence
that the prior allegations are false in fact,
which . . . I think it’s an incredibly high hurdle

17
that the legislature has set, but . . . I think
there’s probably also good reason . . . for the
legislature setting the hurdle that high, and
that’s the standard that the Court has to
follow.

So, the court concluded, without conducting a hearing, that Marx

could not introduce evidence of the accuser’s alleged history of false

reports of sexual assault. (The trial court allowed Marx to present

other evidence attacking the accuser’s credibility. That evidence is

not an issue in this appeal.)

B. Standard of Review

¶ 40 We review a trial court’s determination of the admissibility of

evidence under the Rape Shield Statute for an abuse of discretion.

People v. Lancaster, 2015 COA 93, ¶ 35, 373 P.3d 655, 661 (citing

People v. Cook, 2014 COA 33, ¶ 34, 342 P.3d 539, 547). But, as

noted above, we review questions of statutory interpretation de

novo. See People v. Golden, 140 P.3d 1, 4 (Colo. App. 2005) (holding

that a trial court’s interpretation of the Rape Shield Statute is

reviewed de novo).

18
C. Offers of Proof and Evidentiary Hearings Under the Rape
Shield Statute

¶ 41 Under the Rape Shield Statute, evidence of specific instances

of a victim’s prior sexual conduct are “presumed to be irrelevant” to

the criminal trial. § 18-3-407(1); see People v. Weiss, 133 P.3d

1180, 1185 (Colo. 2006). By limiting “fishing expeditions” into a

victim’s sexual history, the Rape Shield Statute advances the policy

goal of protecting victims from humiliating and public exposure of

intimate details of their lives absent a “preliminary showing that

evidence thus elicited will be relevant to some issue in the pending

case.” People v. McKenna, 196 Colo. 367, 371-72, 585 P.2d 275,

278 (1978). Defendants in sexual assault cases do not have a due

process right to introduce “irrelevant and inflammatory evidence.”

People v. Schmidt, 885 P.2d 312, 315 (Colo. App. 1994).

¶ 42 The Rape Shield Statute includes several exceptions to the

presumption that evidence of a victim’s sexual activities is

inadmissible. Lancaster, ¶ 36, 373 P.3d at 661. Under the

exception relevant to this case, “evidence that the victim . . . has a

history of false reporting of sexual assaults” is admissible, but only

if the evidence is relevant and material, and the defendant follows

19
the procedure set forth in the Rape Shield Statute for admission of

the evidence. § 18-3-407(2); see Lancaster, ¶ 36, 373 P.3d at 661.

¶ 43 The Rape Shield Statute requires a two-part procedure for

determining whether a defendant charged with sexual assault may

introduce evidence of the victim’s alleged history of falsely reporting

sexual assaults. First, the defendant must make an offer of proof

through a written motion and a supporting affidavit. § 18-3-

407(2)(a). The affidavit “must articulate facts which, if

demonstrated at the evidentiary hearing by a preponderance of the

evidence, would show that the alleged victim made multiple prior or

subsequent reports of sexual assault that were in fact false.”

Weiss, 133 P.3d at 1182.

¶ 44 Second, if the court finds that the defendant’s offer of proof is

sufficient, the defendant is entitled to an in camera pretrial

evidentiary hearing on the admissibility of the evidence of the

alleged false reporting.

¶ 45 These procedures

protect the victim’s privacy; allow the accused
person to explore facts; enable the trial judge
to determine in a pretrial hearing what shall be
admitted or excluded at trial; and serve the
state’s interest in prosecuting those accused of

20
sexual assault while affording defendants a
fair opportunity to confront their accusers.

Id. at 1186.

1. The Offer of Proof

¶ 46 An offer of proof under the Rape Shield Statute is a preview of

the evidence a party is prepared to introduce at an evidentiary

hearing. It consists of allegations that the party’s attorney

represents would be proven if the court granted the hearing. State

v. Martinez, 991 A.2d 1086, 1094 (Conn. 2010). The purposes of an

offer of proof include “inform[ing] the court of the legal theory under

which the evidence is admissible,” advising “the trial judge of the

specific nature of the evidence so that the court can judge its

admissibility,” and creating “a record for appellate review.” Id.

(quoting State v. Payne, 917 A.2d 43, 49 n.5 (Conn. App. Ct. 2007));

see Itin v. Ungar, 17 P.3d 129, 136 (Colo. 2000) (“An offer of proof

must sufficiently inform the court of the nature and substance of

the proposed evidence both to enable the trial court to exercise its

discretion under the rules of evidence and to provide a basis for

appellate review.”); CRE 103(a)(2) (“In case the ruling is one

excluding evidence, the substance of the evidence was made known

21
to the court by offer or was apparent from the context within which

questions were asked”).

¶ 47 An offer of proof under the Rape Shield Statute typically

consists of a witness’s anticipated testimony, an explanation of the

purpose and relevance of the testimony, and a recitation of the facts

necessary to establish the testimony’s admissibility. Weiss, 133

P.3d at 1186-87. The defendant must “justify the trial court

holding an evidentiary hearing for the purpose of ascertaining

whether the alleged victim made multiple sexual assault reports

that were demonstrably false.” Id. at 1189.

¶ 48 Thus, a defendant is entitled to an evidentiary hearing under

the Rape Shield Statute if the proposed evidence would be sufficient

to establish, “by a preponderance of the evidence, at the in camera

evidentiary hearing that the alleged victim made multiple reports of

prior or subsequent sexual assault that were in fact false.” Id. at

1188. If the defendant does not satisfy this burden, the evidence of

the prior sexual assault claims is “irrelevant, immaterial, and

inadmissible in the case at trial.” Id. at 1189.

¶ 49 The preponderance of the evidence standard applies in

determining preliminary questions regarding the admissibility of

22
evidence. Vasquez v. People, 173 P.3d 1099, 1105 (Colo. 2007).

This standard directs the court to decide whether the existence of a

contested fact is “more probable than its nonexistence.” People v.

Taylor, 618 P.2d 1127, 1135 (Colo. 1980) (quoting Page v. Clark,

197 Colo. 306, 318, 592 P.2d 792, 800 (1979)). Proof “by a

preponderance of the evidence” requires that the evidence must

“preponderate over, or outweigh, evidence to the contrary.” City of

Littleton v. Indus. Claim Appeals Office, 2016 CO 25, ¶ 37, 370 P.3d

157, 158 (quoting Mile High Cab, Inc. v. Colo. Pub. Utils. Comm’n,

2013 CO 26, ¶ 14, 302 P.3d 241, 246). It is not “an especially high

degree of proof.” Id. at ¶ 38, 370 P.3d at 168.

¶ 50 Further, a defendant cannot introduce evidence of the victim’s

purported history of false allegations of sexual assault under the

Rape Shield Statute unless the proposed evidence would establish

“that the alleged victim made multiple prior or subsequent reports

of sexual assault.” Weiss, 133 P.3d at 1182. A single false report is

not a “history of false reporting of sexual assaults.” Id. at 1187

(concluding that “the word ‘history’ means ‘[a]n established record

or pattern of behavior’” (quoting American Heritage Dictionary of the

English Language 833 (4th ed. 2000))).

23
2. The Evidentiary Hearing

¶ 51 If the defendant makes a sufficient offer of proof under the

Rape Shield Statute, at the subsequent evidentiary hearing, “to the

extent the facts are in dispute, the court may allow the questioning

of the victim or witness regarding the offer of proof made by the

moving party or otherwise allow a presentation of the offer of proof,

including but not limited to the presentation of witnesses.”

§ 18-3-407(2)(c).

At the conclusion of the hearing, . . . if the
court finds that the evidence proposed to be
offered . . . is relevant to a material issue to the
case, the court shall order that evidence may
be introduced and prescribe the nature of the
evidence or questions to be permitted. The
moving party may then offer evidence
pursuant to the order of the court.

§ 18-3-407(2)(e).

D. Marx Was Entitled to a Hearing to Determine the Admissibility
of Evidence of the Accuser’s Alleged History of Falsely
Reporting Sexual Assaults

¶ 52 The trial court applied the wrong standard in ruling that Marx

had to surmount an “an incredibly high hurdle” to prove

entitlement to a hearing under section 18-3-407(2). Although the

court referred to the preponderance of the evidence standard, it did

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not merely misapply that standard to the facts. Rather, it held

Marx to a different, higher standard.

¶ 53 Contrary to the trial court’s ruling, Marx was not required to

prove at the offer of proof stage that the accuser’s prior allegations

of sexual assault were “false in fact.” Rather, he needed only to

show that, at an evidentiary hearing, he could establish the falsity

of the accuser’s prior accusations by the low preponderance of the

evidence standard. Weiss, 133 P.3d at 1189; Taylor, 618 P.2d at

1135; Lancaster, ¶ 40, 373 P.3d at 662.

¶ 54 Marx met his burden of proving entitlement to an evidentiary

hearing on the admissibility of evidence of the accuser’s alleged

false reporting because the Affidavit satisfied the Rape Shield

Statute’s offer of proof requirement. In the Affidavit, King made the

following sworn statements, among others:

• The accuser alleged that S.M., a boy at her school, had

sexually assaulted her at a public library. The accuser

told police that S.M.’s friends had been nearby and

laughed during the assault. But, when asked, the

accuser could not provide the names of any of those

friends. Mike Jaramillo, one of the accuser’s teachers,

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did not believe the assault could have happened due to

the number of students who would have observed it.

• Jaramillo told police that the accuser “makes up stories

regularly” and that she had “accused another student of

touching her on the bus” during a field trip, which “was

investigated and found to be untrue.” In a later

interview, the accuser said she remembered “taking a

field trip on a school bus . . . but doesn’t remember

telling any of her teachers that one of her classmates

touched her inappropriately while they were on that bus.”

• The accuser alleged that S.M. forced her to give him oral

sex underneath the staircase at school and that S.M.

“has had sex with her under the stairs at school.” The

accuser gave three different and contradictory accounts

of these allegations to detectives and officers.

Additionally, a school security specialist, Steve Kerchee,

was unable to find any video footage of such incidents

from the surveillance camera in the hallways where the

sexual assaults had allegedly occurred.

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• S.M. denied all of the accuser’s allegations and told

detectives “he did not do anything that [the accuser] said

he did.”

• Police saw text messages between the accuser and S.M.,

initiated by the accuser, after the first alleged sexual

assault. In the first exchange, the accuser said, “hey this

is [the accuser]” to which S.M. replied “hey.” On another

occasion, two days before school officials learned of the

allegations of sexual assault, the accuser sent S.M. a text

message asking how his orthodontist appointment went,

to which S.M. did not respond. The messages made no

reference to any sexual activity between the accuser and

S.M.

• During an interview, the accuser provided contradictory

information on the number of times and places where

S.M. had allegedly sexual assaulted her.

• Jaramillo said during an interview that he never saw the

accuser and S.M. together, or acting in a romantic way,

and that “he was pretty sure that [the accuser’s

allegation] wasn’t true.”

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• Following a police investigation into the accuser’s

allegations, a detective concluded there was “no evidence

that a sexual assault occurred” and that, unless the

investigators found evidence corroborating the accuser’s

claims, the detective would close the case.

¶ 55 In describing the instances of the accuser’s alleged false

reports of sexual assault, Marx did not rely only on general denials

that the underlying sexual assaults had occurred, testimony that

the accuser had made only a single false accusation, or evidence

that the accuser’s accusations had not resulted in the filing of

charges. The Affidavit referenced other witnesses besides S.M. who

were prepared to testify to the falsity of the accuser’s accusations

and the school’s findings that the accuser had made false

allegations of sexual assault.

¶ 56 This case is distinguishable from Weiss, where the motion

requesting the evidentiary hearing rested solely on allegations that

no charges had been brought as a result of the victim’s reports of

sexual assault. Weiss, 133 P.3d at 1188-89. In that case, the

supreme court concluded that the lack of charges was an

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insufficient offer of proof upon which a trial court could order an

evidentiary hearing. See id.

¶ 57 In sum, we conclude that the facts described in the Affidavit

were sufficient to establish that Marx could demonstrate at an

evidentiary hearing, by a preponderance of the evidence, the falsity

of the accuser’s multiple previous allegations of sexual assault. See

id. at 1189; see also State v. Manini, 659 A.2d 196, 204 (Conn. App.

Ct. 1995) (holding that the defendant’s offer of proof, supported by

medical records describing victim’s sexualized prior delusions and

hallucinations, was sufficient under the Rape Shield Statute to

require the court to conduct an evidentiary hearing on the

admissibility issue).

E. Conclusion

¶ 58 The trial court erred in holding that Marx was not entitled to

an evidentiary hearing under section 18-3-407(2) because he had

not shown, under an “incredibly high hurdle” standard of proof,

that the accuser’s prior allegations of sexual assault were “false in

fact.”

¶ 59 Accordingly, we conclude that Marx is entitled to an

evidentiary hearing under the Rape Shield Statute.

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§ 18-3-407(2)(c). At the hearing, Marx will be required to prove, by

a preponderance of the evidence, the facts set forth in the Affidavit

allegedly showing that the accuser had made “multiple prior or

subsequent reports of sexual assault [that] were in fact false.” See

Weiss, 133 P.3d at 1184.

V. Remaining Contentions

¶ 60 In light of our disposition of this appeal, and because the

remaining issues Marx raises on appeal may not recur in any

retrial, we do not address Marx’s other contentions of error.

VI. Conclusion

¶ 61 The judgment of conviction is reversed and the case is

remanded for further proceedings consistent with this opinion. On

remand, the trial court is instructed to conduct an evidentiary

hearing under section 18-3-407(2) to determine whether Marx can

establish, by a preponderance of the evidence, that evidence of the

accuser’s alleged history of falsely reporting sexual assaults is

admissible. We offer no opinion as to whether the evidence should

or should not be ruled admissible.

JUDGE ROMÁN concurs.

JUDGE J. JONES specially concurs.

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JUDGE J. JONES, specially concurring.

¶ 62 I agree with the ultimate conclusions reached by the majority

on all issues. I write separately only because I disagree with the

majority’s path to the result on one of those conclusions.

¶ 63 The majority determines that in ruling on Marx’s motion under

the rape shield statute, the district court “applied the wrong

standard.” Given that the district court said it was applying the

preponderance of the evidence standard — which is the right

standard — I am uncomfortable with that determination,

notwithstanding the language to which the majority points. After

all, compared to the usual test for admitting evidence — mere

relevance — the statute does create a higher bar for admissibility. I

believe it is possible to read the district court’s comments in that

light.

¶ 64 Nonetheless, I believe that the district court misapplied the

standard and that, for the reasons articulated by the majority, Marx

is entitled to a hearing on his motion.

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